Olejar v Transport Accident Commission
[2016] VCC 849
•23 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01833
| LJILJANA OLEJAR | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 9 May 2016 | |
DATE OF JUDGMENT: | 23 June 2016 | |
CASE MAY BE CITED AS: | Olejar v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 849 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the lumbar spine – Chronic Pain Syndrome – aggravation of pre-existing lumbar symptoms and pre-existing psychiatric issues – paragraph (a) and paragraph (c) of definition of “serious injury”
Legislation Cited: Transport Accident Act 1986
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Ms E Tueno | Zaparas Lawyers |
| For the Defendant | Mr A Moulds QC with Ms J Clark | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to bring a proceeding for recovery of damages in respect of injury suffered in a transport accident on 28 November 2009. The applicable principles were not in dispute. Only the plaintiff gave evidence before me. The other evidence was in documentary form.[1]
[1]Exhibit 1: Plaintiff’s Court Book (“PCB”), pages 1-201A (tendered by the plaintiff on 6 May 2016); Exhibit 2: Defendant’s Court Book, pages 1-52 (tendered by the defendant on 6 May 2016); Exhibit 3: DVD containing video (tendered by the defendant on 6 May 2016), and Exhibit 4, folder of notes (tendered by the defendant on 6 May 2016).
2 In opening the case for the plaintiff, counsel informed me that the plaintiff relied upon paragraph (a) of the definition of serious injury. In this regard, the body function said to be impaired is that of the spine, principally chronic lumbar back pain. In the alternative, the plaintiff relied upon paragraph (c), the identified psychiatric impairment being a Chronic Pain Syndrome. Counsel also informed me that whether the application was considered under paragraph (a) or under paragraph (c), the plaintiff relied upon an aggravation of pre-existing lumbar symptoms and pre-existing psychiatric issues.
3 I was informed of the plaintiff’s background in opening. She was born in Serbia in 1958, schooled for eight years, married at sixteen years of age and arrived in Australia at the age of 18 and was pregnant. The marriage, which had been arranged, was abusive and ended after the birth of two daughters. A subsequent and also difficult relationship bore a son, now aged twenty-one or twenty-two. The father of the son was involved in criminal activities in which the plaintiff became caught up and she served a term of imprisonment in about the Year 2000. Both her brothers have served prison terms and her parents, as they aged, required her to perform the function of a carer, which she did.
4 Of her work history, I was informed that the plaintiff sustained injury at Red Tulip (a chocolate manufacturer) in the 1970s, described by counsel as “a work injury then to her back, although she recalls it mostly her neck and her arms”.[2] A Workers’ Compensation claim resolved after she had about four years off work for that injury. Her return to work was through a family business in a restaurant, then at Lipton Tea. In the years before the accident, the subject of these proceedings, the plaintiff also worked for a period of about five years at Monash University as a cleaner, working 15 hours a week on a morning shift from 4.00am until 7.00am. She stopped work in May 2009.
[2]Transcript (“T”) 5 – compare T6, Line(s) (“L”) 13‒21
5 The plaintiff’s father died unexpectedly in early June of that year. Her reaction to his death was such that she was soon referred for psychological and psychiatric treatment, and a major depressive illness was diagnosed. In 2009, at around the time she stopped work, and at relatively regular times in the years before, the plaintiff had consulted general practitioners with complaints of pain arising from the lumbar spine.
6 The plaintiff described the accident as occurring when a vehicle came from her left as she was driving, struck her car and pushed it into the path of another vehicle coming from the other direction, which also struck her vehicle, causing her vehicle to be written off. She said she experienced pain in her neck, low back and left shoulder. Some five days later, because of persisting neck, low-back and knee pain, and difficulty sleeping, she attended a general practitioner.
7 The hearing before me was conducted on the basis that, because of the plaintiff’s pre-existing problems, it was necessary to apply the principles set out in Petkovski v Galletti,[3] so the plaintiff bore the onus of establishing that the aggravation of the pre-existing condition, assessed by comparing the degree of impairment before the accident to the additional impairment after the accident, was itself “serious” in the case of paragraph (a) or “severe” in the case of paragraph (c) of the definition of “serious injury”.[4]
[3][1994] 1 VR 436
[4]Counsel accepted that it was necessary for the plaintiff to establish, on the balance of probabilities, each of the comparators: see T67
The Plaintiff’s pre accident condition
8 The plaintiff’s account of her pre-accident condition as set out in her first affidavit was that she had suffered “an injury to my spine” that put her off work for several years; that she had subsequent jobs which she listed (the most recent being cleaning at Monash University and caring for her father); and then this statement — “My injury did not prevent me from doing any of these jobs”.[5] As to her past psychiatric history, she said she had in the past had difficult relationships, causing psychological distress; that her time in prison was a very traumatic experience for her; and that at times she had had panic attacks for which Xanax and Valium was prescribed. She stated she had put these problems behind her in the year before her father’s death.[6] The plaintiff also stated:
“I also suffered from back pain prior to the accident with intermittent flare-ups. I was prescribed medicine for the pain. I also had a few sessions of acupuncture for my back pain. I was still able to look after my parents and grandchildren and do my household chores.”[7]
[5]PCB 2, paragraph 6
[6]PCB 3, paragraph 7
[7]PCB 3, paragraph 8
9 The plaintiff swore:
“After my father died I was upset and I saw a psychiatrist. I was very close to my father and his loss significantly affected me psychologically for a few months. I ceased working just before his passing and due to my grief and depression, I did not return. I was prescribed some antidepressant medication. In about October 2009 I stopped taking the antidepressant medication because my depression had improved. By the time of the accident, I had dealt with my father’s death and was thinking about returning to work.”[8]
[8]PCB 3, paragraph 9
10 By reference to these passages in her affidavits, and to a number of histories recorded by medical examiners over the years, the subject of the degree of pre‑accident impairment was extensively explored with the plaintiff in the course of cross-examination.
11 In evidence was a folder of clinical records from each of three different general practices the plaintiff had attended in the years before and since the accident. A brief summary of some of the attendances became exhibit 5. It showed that in the years after July 2004, the plaintiff was seen with complaints of low-back pain, and at times sciatica (on more than twenty occasions) and had been investigated with CT scans in December 2005[9] and July 2007.[10]
[9]Exhibit 4, page 23 Silverton notes
[10]Exhibit 4, page 9 Stud Road notes ‒ It is not clear whether the CT scan referred to in the entry of 11 August 2008, was to one or other of the earlier CT scans, or to a new one performed at about that time.
12 Cross-examination of the plaintiff began with the proposition that, before the accident, Dr Ranasinghe had been the plaintiff’s main general practitioner. The plaintiff denied this, saying it was Dr Kucminska, whom she also saw, but at a different clinic. Cross-examination continued, and the plaintiff agreed she had suffered back pain and leg pain before the car accident; that the fall at Red Tulip had been in about 1984, and that she had had four years off work as a result of her back injury[11] (though she later said the injury was to her face and perhaps hands).
[11]T20
13 The plaintiff agreed she had continued to have treatment for her low back until the late 1990s, in the form of massage. She agreed she had been prescribed Tramal, Voltaren and Panamax for presentations for lower back pain from July 2004, and said she only took those medications when she had stronger pain. She said that she was able to continue work. Initially, she said this was so, up until the time of the accident, but then, by reference to an application made for a disability support pension, she seemed to agree she had made an application for the disability pension before the accident, but did not agree that the application was made partly because of back pain, instead saying that “it was very psychological”.[12] She accepted that the notes made by Dr Ranasinghe were correct.
[12]T24, L19
14 The plaintiff recalled prescriptions for Panadeine Forte, Lexapro, Tramadol, hydrochloride and Tramal. She agreed there had been complaints of left leg and foot pain, and that she had seen a physiotherapist. She accepted that she had had acupuncture for back pain and sciatica in late 2007 (although said she could not remember it, despite having put it in her affidavit), and at one point stated that if she was prescribed Tramal, it was for back pain.[13] At one point, she suggested that Mobic had been prescribed for stomach problems, although she did not dispute that about a year before the accident she had been complaining of left lower back pain radiating to the left leg; that she was sent for CT scan; that she had requested Endone because of very bad pain at that time, and prescriptions for Tramal, Panadol Osteo, and Mobic followed. She agreed that in January 2009, she had seen Dr Ranasinghe for backache and was unable to work because of it. It was then put to her that on 9 July 2009, she had attended Dr Ranasinghe and told him that she “still” had a bad back. Next, she agreed that she told the doctor on 31 July 2009 that she had stopped work in early June[14] because of backache, depression and anxiety.
[13]T30
[14]According to exhibit 4, the plaintiff had attended Dr Sorsok on 1 June 2009, and prescriptions for Tramal, Voltaren and paracetamol were varied
15 The plaintiff was then taken to a medical report prepared with her authorisation in support of an application for a disability support pension.[15] The document bears a received stamp of Centrelink of 4 August 2009. The plaintiff accepted the description given in the form of her psychological symptoms at that time, but, taken to the diagnosis[16] of chronic backache, she would not allow that she was at that time suffering chronic backache, replying “Yes, occasionally I had back pain but not like now”.[17] She agreed she had described the disabilities listed in the form to the doctor that related to her back, and eventually allowed that at that time she was unable to do her cleaning work because of back pain. She agreed that in July 2007, she had seen Dr Kucminska with complaints of back pain connected with handling buckets in her work and that this had led to a CT scan, which Dr Kucminska had told her revealed “some changes in my back”[18]. She said she was instructed to avoid lifting heavy things.
[15]Defendant’s Court Book (“DCB”) 45
[16]DCB 48
[17]T33
[18]T36
16 The plaintiff was then taken to the history recorded by the treating psychiatrist, Dr Mahalingam, that she had “been having chronic back pain for many years following a work-related injury and was on WorkCover for four years following the injury. She was receiving regular pain killers from her general practitioner for her back.”[19] The plaintiff denied she told Dr Mahalingam she had had a work-related injury, but agreed that she had told him of a back problem and the taking of medication. Taken to the reference in her affidavit to the injury to her “spine”, the plaintiff said that that had been an injury to her neck. The plaintiff said that the reference to her pre-injury capacity to work in her affidavit[20] should be read as saying that her neck injury was the injury she described as not preventing her from doing any of the jobs with the previous employers. The plaintiff maintained that a history she had given to the medico-legal examiner, Mr Flanc, of “very occasional mild back pain in the past” was true, and that the reason she was unable to work in July 2009 was depression, associated with the death of her father.
[19]PCB 66, Dr Mahalingam’s history
[20]Paragraph 6
17 When pressed in relation to histories that she was either not, or not much, troubled by back pain before the accident which is the subject of this application, the plaintiff allowed that she had given those histories though, initially, would not allow that she had continuing back pain. Eventually, the plaintiff gave this evidence:
Q.“I suggest to you that that is quite wrong, that the history of back pain was not years earlier at all, it was very recent leading up to the time of the accident?---
A.Yes, I did have some back pain, but it wasn’t that sharp and bad.”[21]
[21]T41
18 The plaintiff was taken to a history recorded by a psychologist at Dr Ranasinghe’s practice, Dr Corran. She agreed with the family details he had recorded. As to the history that she had injured her back working in the Red Tulip factory, she initially agreed, but then said perhaps he had misunderstood and that she had meant an injury to her neck. She did not dispute a history Dr Corran had recorded of an hallucination, though said she could not recall it. She agreed that on 4 November 2009, she had seen a psychologist, Ms Annie Rosenthal, suffering from depressive grief due to the death of her father. Eventually, she agreed that she was still being treated by psychologists at the date of the accident, as she was by Dr Mahalingam. She also agreed she was still taking Lexapro at the time of the accident, but denied that it had been increased in dosage not long before, saying that the increase had occurred after.
19 Next, she was cross-examined by reference to the TAC Claim Form, a document completed in the presence of her solicitor on 3 June 2010.[22] In it, she nominated Dr Kucminska as the doctor treating “your injuries”, and had left blank the question that asked if that doctor was “your usual doctor or treatment provider”. When asked if there was any reason why she did not alert the TAC to Dr Ranasinghe, she replied “No. Dr Kucminska is my doctor treat me (sic).”[23] In the form, she denied pre-accident treatment from physiotherapists, psychologists or psychiatrists, but did state that she had pre-accident lower back and neck pain/condition and psychiatric condition. When asked for details of the conditions, she described the back as “minor problem in back. Maybe a little pain once a year – but quickly resolved.” And of the neck, “very minor pain in past”. And of the psychological condition, “a little bit of depression when my father died”.
[22]DCB 1
[23]T48
20 As to the medication being taken regularly prior to the accident, the plaintiff listed Lexapro and Avanza.
21 In answer to the enquiry about earlier claims for compensation, the plaintiff answered “WorkCover – 25 y/o (hands)”. She listed her pension at the time of the accident as “carer’s pension”. She agreed she had told her solicitor at the time the TAC form was filled in that twenty-five years before, she had had a WorkCover claim relating to her hands.
22 When further cross-examined about the omissions, and descriptions of pre-accident conditions in the TAC Claim Form, the plaintiff offered an explanation that “for the accident I was going to see Dr Kucminska”.[24] When it was put to her that the description of the back condition in the form considerably understated the situation, she replied “Yeah, I got my back problem”. She maintained that her depression before the accident was mild. Eventually, she agreed that on 8 October 2009, her dose of Lexapro had been doubled.
[24]T49
23 In re-examination, as to the injury at Red Tulip, the plaintiff described an injury to her face and neck which had been preceded by painful hands. She explained that the application for a disability support pension had not been successful and that her source of income was a carer’s pension for her mother, and before that, after stopping work, she had been a carer for her father. In between her two carer roles, she received NewStart benefits. She said she had to provide a medical certificate to have time off from her cleaning job which involved picking up paper, mopping, table wiping and vacuuming three hours each weekday morning. When asked whether she took medication while she was at work, she said yes, if she had pain. Asked to compare her pain at the time she stopped working as a cleaner with the present time, she said “It is terrible now”.
24 As can be seen, the plaintiff was resistant to the proposition that her back pain was the reason for her stopping work in May 2009, and to the proposition that her mental state and back condition were causing her trouble at the time of the accident. Her position about this seems to have been taken at an early stage after the accident, and it seems likely to me that the relatively sudden adoption of Dr Kucminska as her treating doctor “for the accident” was an effort to quarantine her earlier problems from those she attributed to the accident.
25 Perhaps the most striking example of this is the history recorded by Dr Kucminska in December 2009. The plaintiff attended Dr Kucminska on three occasions – 3, 7 and 14 December ‒ in relation to accident-related symptoms. According to Dr Kucminska’s reports (and this seems borne out by the notes), the history given was that her health prior to the accident had been good, and that because she had felt better, she had stopped taking Lexapro one month before the accident.[25] This is the assertion she had also made in her first affidavit.
[25]Exhibit 4, AK notes page 23
26 This assertion does not sit comfortably with the following:
(i) her (eventual) acknowledgement that about two months before the accident the dosage of Lexapro had been doubled;
(ii) that in the month of the accident, she had seen a psychologist at Dr Ranasinghe’s practice, where no improvement is reported or recorded; and
(iii) that on the morning of her first attendance at Dr Kucminska’s practice for accident-related problems, Dr Sorsoc altered her dosage of Lexapro, the clinical notes making no mention of cessation a month earlier, or of the accident.
27 In this context, I should mention also that no change in medication is mentioned by the treating psychiatrist in his reports, and it seems that the plaintiff kept taking the Avanza which continued to be prescribed at Dr Ranasinghe’s practice.
28 Counsel agreed[26] that the Petkovski analysis could only be conducted by establishing both of the before-and-after-accident conditions and that the onus of doing so rested upon the plaintiff. In her careful and detailed submissions, counsel for the plaintiff urged me to find that as at the date of the accident, the plaintiff had a history of only “episodic” low-back pain that had not interfered with her capacity to continue work as a cleaner; that she was then considering a return to work, and that her psychiatric state was improving.
[26]T 67
29 I am not persuaded of this. Firstly, because the plaintiff has, in my view, been consciously or subconsciously downplaying the length and severity of her pre-accident history of back problems. In my view, this downplaying is demonstrated in the TAC Claim Form; in her histories to medico-legal examiners; in her sudden and, in my view, unexplained switch from one practice to another for the treatment of the accident-caused symptoms; in her affidavits, and in her responses in cross-examination.
30 Secondly, in my view, it is more likely that the plaintiff suffered from chronic low-back pain (this being the description given to it in the report the general practitioner, who had managed her back for years before, had written in support of her application for the disability support pension) which was episodically severe enough to require the prescription of (what that general practitioner described as) strong analgesics and regular anti-inflammatory medication. In my view, it is also more likely to be the truth of the matter that this back pain caused the plaintiff to cease work in May 2009, as this is the reason she offered to her general practitioner, at a time when she had no reason to offer this explanation other than its truth.
31 In my view, the plaintiff’s account that she stopped taking Lexapro (her account is silent about whether the Avanza continued or not, as are the clinical notes) before the accident because her condition had improved is also unlikely to be the truth of the matter. The treating psychiatrist does recall that her depression became controlled after he had doubled the doses of Lexapro and Avanza, but she was keeping monthly appointments with psychologists at Dr Ranasinghe’s practice; was reporting continuing concerns, and had recently been prescribed an increased dose of Lexapro when the accident occurred.
The aggravation - chronology of treatment and investigation
32 The plaintiff’s case that some form of significant aggravation of her longstanding low-back problem was caused by the accident, is not, in my view, supported by the clinical records of her symptoms.
33 First, she did not attend any medical practice until five days after the accident. Bearing in mind how frequently she attended the doctors for a great variety of health problems before and after the accident, it seems unlikely that had she sustained significant pain as a result of the accident, she would have waited this long.
34 Second, on the morning of 3 December 2009, she attended Dr Sorsoc, who had seen her many times before, making no mention of the accident, yet later that day presented to Dr Kucminska with a range of complaints.
35 Third, though seen on three or four occasions by Dr Kucminska over the next four weeks, it seems clear from both sets of notes that no accident-related symptoms were reported to either clinic between January and May 2010, though the plaintiff attended Dr Ranasinghe’s practice in that period on seven occasions.
36 The clinical notes from Dr Ranasinghe’s practice show that the plaintiff continued to attend relatively frequently after the accident (on a rough count, thirteen times over the next twelve months), but no note attributes any presentation to the car accident beyond that made on 4 January 2010, where the accident is recorded with this note “hit the head on the steering wheel, had neck pain few days and a headache. Now getting better.” A presentation on 31 May 2010,[27] for right-sided sciatica for one week, is the only entry in the next twelve months for anything that might have been related to the accident here under consideration. It is perhaps of interest that about four weeks before, on 4 May 2010, she had attended Dr Kucminska with complaints of sciatica (perhaps left-sided but that is not clear).[28]
[27]Exhibit 4, page 7 Silverton notes
[28]Exhibit 4, page 22 Dr Kucminska’s notes
37 After her presentation with right-sided sciatica in May of 2010, the plaintiff was referred to a neurosurgeon, Mr Drnda. He saw her in August 2010 and obtained a six-month history of pain in the anterolateral aspect of the right leg on a background of some pre-existing complaints (but nothing major) and being pain-free just prior to the accident. On examination, the only significant findings seem to have been mildly restricted movements of the lumbar spine, and expressions of functional overlay and pain in completely unexpected areas. Dr Drnda thought the changes shown on the CT scan existed well before the accident and suggested an injection to see whether “that old disc protrusion” at L1-2 could be causing her leg pain. He ordered an MRI scan[29] which he did not ask the TAC to approve because of his doubts that her presentation was related to the accident, and in his letter to the general practitioner, stated: “There is a lot of functional amount of overlay and a significant psychological component and a past history which would support development of chronic pain.” Somewhat gratuitously, he offered the comment that the patient already had a lawyer and he suspected that was the reason for her visit to him.[30] In his letter to the solicitors,[31] he stated that the neck and low-back pain were consistent with the car accident and “this injury to soft tissues are caused by the car accident” and “the patient did not require treatment in regard of her possible spinal problem and neither for meralgia paraesthetica or carpal tunnel syndrome as there (scil they) were of a relatively mild nature and with further conservative management could have settled”.[32]
[29]The radiologist’s report is at PCB 108
[30]PCB 23
[31]PCB 25
[32]PCB 26
38 About a year later, on 7 June 2011, the plaintiff was referred to Mr Brian Barrett, orthopaedic surgeon. In his letter back to Dr Kucminska,[33] he reported that the plaintiff continues to complain of low-back pain radiating to the right, less frequently to the left, gradually increasing in severity. She gave a prior history of low-back pain whilst working as a cleaner that did not cause her to go off work at all. Mr Barrett reviewed the available radiology, describing changes at the upper lumbar levels and, to his eye, the lower three lumbar discs appeared to be normal in all respects, with some relatively mild osteoarthritic changes present in the posterior facet joints. He thought the changes at L1-2 had been present for “some considerable time” and “certainly” predated the accident.[34]
[33]26 September 2011, PCB 29
[34]PCB 28
39 In a letter of 26 September 2011 to the plaintiff’s solicitors,[35] Mr Barrett wrote that “these upper lumbar disc ruptures, her ongoing symptoms and disability, are all consistent with her history of injury and are of a genuine and physical nature”. Mr Barrett went on to state[36] that such disc ruptures had no capacity to heal, and that the symptoms are likely to continue, particularly with certain physical activities, stating his opinion that the degree of disability is “quite profound”. His opinion as to the cause of the disc pathology in the upper lumbar spine seems to be quite at odds with his earlier definite opinion that the changes there seen certainly predated the accident. Of course, if he was correct in dating those changes to a time well before the accident, and correct in attributing her disability to those changes, then that disability necessarily predated the accident. In this regard, it is to be remembered that Mr Drnda was in no doubt that the upper lumbar changes predated the accident.
[35]PCB 29
[36]PCB 31
40 Pausing here, at this point in the examination of the plaintiff’s post-accident treatment, the specialists she had seen (though noticing the radiological changes were old) seemed prepared to attribute her then complaints to the accident, at least partly on the basis of a history that her back was not much of a problem to her before then. However, viewed in the light of the persistence of her complaints before the accident; the treatment provided for it, and the cessation of her part-time work because of it, there is not much evidence (beyond the plaintiff’s complaints of it) that the accident caused any significant additional symptoms to the lumbar spine. Specialist examination, apart from the observations about functional overlay, revealed no more than mild limitation of spinal movement. Moreover, the right-sided sciatic-like symptoms, which precipitated the referral to the first neurosurgeon, are not anywhere recorded before May 2010, some six months after the accident. In those circumstances, why the accident should be regarded as the cause of the sciatica, or of the persistent back pain, is not clear.
41 The plaintiff underwent a further MRI scan in February 2012. On 8 February 2012, Mr Barrett wrote to Dr Kucminska concerning the MRI, stating his view that in comparison with the earlier MRI, it “shows some advancement of this disc bulging on the right side”,[37] and that her symptoms were consistent with the radiological changes. He did not think surgery had anything to offer and noted that she was in a difficult situation because she was then working as a carer for her mother and that “bending, twisting, lifting and pushing will inevitably increase her symptoms”.[38]
[37]PCB 35
[38]Radiologist's report of the MRI scan is at PCB 43
42 In, perhaps, late 2011, the plaintiff was referred to Dr Michael Brighton-Knight, orthopaedic surgeon. In a letter of 22 February 2012,[39] he wrote to Dr Shirazi, stating that the plaintiff had a long-standing Chronic Pain Syndrome; that a small part of her symptoms were due to the neural compression shown on MRI, and that she was opioid dependent and mechanically sensitised. Apparently, Dr Brighton-Knight had been asked to see the plaintiff by Mr Barrett. In his letter to Mr Barrett of 28 February 2012,[40] he set out his opinion, which was that she had right-sided pain arising from an L1-2 disc herniation, but that the majority of her pain was mechanical pain affecting the lower back. For reasons he stated, he did not think surgery was a good idea, and he suggested referral to pain management.
[39]PCB 47A
[40]PCB 47B
43 The pain management was at the hands of Dr Shirazi of the Victorian Rehabilitation Centre.[41] On seeing the plaintiff on 19 March 2012, Dr Shirazi’s diagnosis was of “a generalised pain syndrome with significant combination of nociceptive[42] and neuropathic pain related to a mechanical back pain”.[43] He trialled her on Gabapentin for management of the neuropathic pain and reduced her dosage of OxyContin, expressing concerns about the dangers of dependency on opioids. He recommended that she be treated at the Victorian Rehabilitation Centre.
[41]PCB 49
[42]This had been typed as “non-susceptive” in his letter PCB 50
[43]PCB 50
44 After approval was obtained, the plaintiff was assessed at the Victorian Rehabilitation Centre on 10 July 2012.[44] On assessment, she had moderate restrictions of lumbar spine movements and limited straight-leg raising and reduced power. Attendance at a pain management program was then recommended.[45] In Dr Shirazi’s report of July 2013, he noted that, at least as late as 26 October 2012, staff at the Victorian Rehabilitation Centre had been unable to contact the plaintiff, and so the program he had recommended had not been undertaken. The plaintiff mentioned in her affidavit of April 2014 that a lack of funding prevented her undertaking this program.
[44]PCB 62
[45]
45 In August 2011, Dr Kucminska wrote to the plaintiff’s solicitors.[46] The report is introduced by the observation that, because she had been treating the plaintiff’s mother, she had seen the plaintiff on many occasions in previous years. Dr Kucminska stated that, prior to the motorcar accident, the plaintiff’s general health had been good; that Lexapro for depression had ceased about a month before the accident because she felt better, and that she took Xanax for anxiety-panic attacks every now and then.
[46]PCB 36
46 After setting out the history of her treatment and specialist referral, noting that chiropractic treatment appeared to worsen things, Dr Kucminska wrote that the plaintiff was still suffering from neck and lower back pain radiating to the right side down to the foot; that the injuries had stabilised, and she was unable to work due to pain and restricted movements.
47 A further report of 25 March 2012[47] recorded a worsening of her back symptoms, and referrals to orthopaedic surgeons and to Dr Shirazi.
[47]PCB 40
48 In her most recent report of 12 November 2015, Dr Kucminska noted that she had known the plaintiff for fifteen years, stating that her medical history and history of injury was known to her. In the report, she states that the specialist’s opinion had been that surgery was required; that eventually the plaintiff did receive approval for the pain management program at the Victorian Rehabilitation Centre, and that the plaintiff had attended it for nearly a year, with some benefit.[48] She noted that the program enabled the plaintiff to function better, but her pain never went away. Dr Kucminska listed a much expanded range of current symptoms, including problems with the neck, shoulders and elbows, and gastric symptoms. Dr Kucminska then lists the considerable number of medications the plaintiff was then being prescribed, noting that approval for a gastroscopy to clarify her gastric symptoms, which were thought to be due to her intake of medication, had been sought.
[48]In her recent affidavit, the plaintiff makes no mention of ever attending this program
49 Writing in August 2012, the plaintiff’s treating psychiatrist, Dr Mahalingam, noted that when he first saw her in August 2009, she suffered from chronic back pain and asthma, and he had taken a history that she had not had any trouble with the law.[49] He listed significant “life events” since first seeing her, and noticed that, since the accident, her back pain had become worse. He felt her prognosis in regard to her depression was good, and that the prognosis for her pain should be addressed by others.
[49]Somewhat remarkably, no mention of imprisonment for nine months, suicidal ideation (at least) during it, and Post-Traumatic Stress Disorder because of it, is found in his histories
50 Writing again in April 2014,[50] Dr Mahalingam thought her chronic pain was still moderately severe and was in need of pain management from specialised pain management services.
[50]PCB 69
51 In a further report of 8 December 2015, Dr Mahalingam wrote that the plaintiff’s prognosis for depression was good, as it was well controlled by medication, but that the prognosis for her chronic pain was not good, as, despite a raft of medication, she still rated her pain at 6 to 7 out of 10 on the 0 to 10 scale.
52 Dr Mahalingam stated:
“Whether the accident caused her current exacerbation of pain cannot be answered by me. This question has to be addressed by a spinal surgeon who has expertise and access to the pre and post MRI of her spine.”
53 In evidence was a report by Dr Sridevi Kolli, psychologist, who treated the plaintiff between January 2012[51] and April 2014. The plaintiff had been referred to him by Dr Kucminska for therapy for anxiety and depression.
[51]In the body of the report the date given is 2011, but reference to the date of referral and period of consultation suggests it was 2012
54 In a report of May 2014,[52] Dr Kolli stated that testing showed the plaintiff had a severe level of difficulty with depression and anxiety, and moderate levels of stress, and that her presentation was in the context of heightened negative emotions triggered by ongoing difficulty managing her physical symptoms.
[52]PCB 77
55 In his report of January this year, Dr Kolli noted that the plaintiff had made little progress, despite his treatment over the years since he first saw her. He felt she would continue to require psychological intervention and medication to manage her psychological symptoms.
56 In July 2013, Dr Kucminska ordered a CT scan,[53] which the radiologist concluded showed bulging at L1-2 “causing localised compression of the adjacent thecal sac and left posterior bulging at L4-5 causing some compression of the adjacent thecal sac and probably also affects the proximal left L5 nerve root”.
[53]PCB 117
57 In a report of 19 May 2014, Dr Ranasinghe, writing from the notes of the Silverton clinic where he had seen the plaintiff until May 2010, said that he started to see her at the Dandenong City clinic from April 2011, at which time she was on OxyContin from another doctor, and he wrote that she was disabled by pain which appeared to have become worse following the car accident. He changed her pain medication to Norspan patches.
58 In a further report of January this year, Dr Ranasinghe set out the plaintiff’s further attendances for a variety of medical problems (including shoulder problems) and the results of further investigations. He set out his examination findings and history from a presentation on 13 January this year. These included that her forward bend was about 30 degrees, and extension 10 degrees. It was his opinion that her “pain was much more aggravated following more recent car accident and she has been taking almost continuous strong pain killars (scil killers)”. He attributed her shoulder pain to the need to hang onto a car roof in order to get out of the car because of back pain.
The medico-legal reporting
59 In evidence were three reports from Dr Paul Kornan, consulting psychiatrist.[54] His first report of October 2011 sets out the history of the plaintiff’s pre-accident condition including “a little bit of back pain” and of tablets for depression, Lexapro, on a stop-start basis before the accident. Acting on a history of settling depression at the time of the accident, Dr Kornan concluded that the accident significantly aggravated her depression and, at the time he saw her, thought she had a Major Depressive Disorder and an Adjustment Disorder with Anxiety.
[54]PCB 123‒152
60 Dr Kornan re-examined the plaintiff on 19 March 2013 and obtained a history of worsening of her back and leg symptoms, pain in the neck and shoulders, pain with turning, arm symptoms, headaches, panic attacks, nervousness and depression. She told him that she felt her father’s death was responsible for 3 out of 10 of her nervous problems and the car accident was responsible for 7 out of 10. On this occasion, Dr Kornan had available to him a more extensive collection of medical reports, including those of the treating psychiatrist. Again, from a psychiatric viewpoint, Dr Kornan concluded that she suffered from a Major Depressive Disorder and an Adjustment Disorder with Anxiety, with some specific phobias. He thought she was slightly improved since he had last seen her, and that her problems were a combination of the effects of her father’s death, and that the bulk of her problems were attributable to the accident. He noted that Dr Mahalingam had a history of additional family issues that she had not reported to him, and that he regarded her psychological status as stable.
61 Dr Kornan saw the plaintiff again in February of this year, and under the heading “Interim history”, noted that she told him that she felt her depression was a more significant problem than previously, and so she was taking an increased dose of Avanza. Dr Kornan reviewed a long list of other medical material, including clinical notes or files from six medical practices, and on this occasion he noted that she presented with a prior history of a Major Depressive Disorder, aggravated by the accident “as a partial contributing factor”. He felt her current presentation was more in line with “a pain disorder aspect”. On this occasion, Dr Kornan stated that she had a Pain Syndrome Associated with Psychological Factors that “has been caused entirely by her involvement in this accident”.
62 After reading the reports of Dr Mahalingam, Dr Kornan seemed to retreat somewhat from his earlier opinions as to the causes of her depression, stating “Whilst the accident initially was a significant factor in her depression, the totality of life events; including the ongoing missing of her father; are important factors in her depressive condition, as well as with her anxiety condition.” On this occasion, Dr Kornan thought her pain situation continued to incapacitate her, and in answer to a question about the effect of the psychiatric injury sustained in the transport accident on her quality of life, said it was “diminished partially because of this accident and its after-effects”. In his final comment, Dr Kornan stated that the effects of the transport accident were now basically related to her pain disorder presentation and phobia about travelling in cars as a passenger, and that her depression was increasingly related to family events, including her father’s death, unrelated to the accident.
63 It is of note that, although with the passage of time Dr Kornan was provided with increasing volumes of medical reports and clinical records (not all of which were in evidence before me), he was at no stage given the history of the plaintiff’s incarceration, attempted suicide or post-traumatic problems arising from her imprisonment. Of course, these matters of history were available in the clinical files he was provided with from the Silverton clinic — specifically Dr Corran’s entries from September 2009 — but if they were noticed by Dr Kornan, he did not mention them.
64 The plaintiff was examined, at the request of her solicitors, by the general and vascular surgeon, Mr Charles Flanc, on 20 January 2012. The current symptoms were of low-back pain, as her most severe problem, radiating down the right leg and not the left. She gave a history, which Mr Flanc set out as a quotation “very occasional mild back pain in the past”. He found, on examination, almost full flexion and moderate restriction of extension and lateral flexion; no neurological signs; no wasting, and non-anatomical diminished sensation to light touch.
65 As far as the lumbar spine was concerned, Mr Flanc’s diagnosis was the aggravation of disc degenerative changes “in the sense that they became symptomatic and remain symptomatic”. Mr Flanc thought her symptoms were influenced by non-organic factors and that she did not suffer from “any actual radiculopathy”. He did not think there was a neck problem of any significance and felt, from a physical point of view, she was fit for light part-time sedentary duties.
66 Mr Flanc saw the plaintiff again on 12 June 2013, this time correcting his earlier history to note that the vehicle she had been driving was driven home by a friend, and not towed away as he had previously recorded. On this occasion, too, the plaintiff rated continuous lower back pain as her most severe problem, and still had radiating pain down the right leg and had developed some left leg symptoms. The history of occasional mild pain in the lower back before the accident was repeated. His examination findings were similar to the earlier set, and neurological testing did not reveal any anatomical pattern. On this occasion, Mr Flanc reviewed an extensive file of documents,[55] and, by reference to them, concluded that her neck symptoms were, in part, related to the physical aggravation of pre-accident mild degenerative conditions without evidence of radiculopathy, and, on the basis of the material provided to him, concluded that the plaintiff was suffering from chronic back pain prior to the transport accident, and that the accident “had probably caused some aggravation of this pre-existing condition in the sense that it became symptomatic and remains symptomatic”. This last statement, seems to pick up the conclusion in his first report,[56] but seems to be at odds with his (new) conclusion that she’d suffered from chronic back pain at the time of the accident.[57]
[55]which he listed, beginning at PCB 166
[56]PCB 158, under the heading DIAGNOSIS AND COMMENTS “in the sense that they became symptomatic and remain symptomatic”
[57]His assessment of her impairment under the AMA Guides at PCB 171 seems to bear this out
67 Mr Flanc saw the plaintiff again on 10 February this year. On this occasion, her neck movements were more restricted than before, and lumbar spinal movements were slightly restricted in flexion and extension, and moderately restricted laterally. On this occasion, sensation to touch was normal; straight-leg raising was positive for both legs at 50 degrees, though “she was able to sit upright on the couch quite easily with her legs straight out in front of and her hands resting lightly on her knees”. His opinion on this occasion, in relation to the lumbar spine, was that it was aggravated in this incident and became “more symptomatic and more frequent than it was before the accident”.[58] Again, he thought there was no specific radiculopathy.
[58]PCB 181
68 In a supplementary report dated 27 April 2016, Mr Flanc, commenting upon surveillance material relating to her activities on 12 February and 26 February 2016 taken very soon after he had examined her and of what was to be seen on it, said it showed “reversing her car … with easy rotation of her neck”, and “walking freely” and “twice bending fully at the waist, possibly to put her shoes on and then walking away easily with her handbag on her shoulder. She walked without difficulty at that time”, noticing that at the end of the later video there was one view of her walking with a slight limp and a hand on her right buttock. He commented that the activities “were performed freely without any obvious disability apart from the few seconds at the end of the second video”, which he thought suggested she may have had some low-back pain.
69 In April 2013, the plaintiff was examined by Professor Stephen Davis, neurologist. He obtained a history that she was in good health before the accident. Professor Davis had apparently been asked to assess the neurological consequences of the accident and, although he did not set out his examination findings, stated that “there were no neurological signs, specifically no features of radiculopathy or myelopathy”.[59] His opinion was that she had sustained musculoskeletal/soft-tissue injuries to the cervical and lumbosacral regions and that there were features of a chronic pain syndrome “in which psychological factors are playing a significant contributory part”. Because of observed restricted movements of the neck, he felt she had a 5 per cent impairment, and concluded by stating “As previously indicated, chronic pain features dominate the picture with pain associated behaviour”.[60]
[59]PCB 194
[60]PCB 94
70 Professor Davis re-examined the plaintiff in February of this year, and, on this occasion, reviewed a number of the other reports in the case. The history included her statement that the worst pain is in the back, where she has pain and stiffness with radiation down both legs, now worse in the left. Her complaints included an inability to sit comfortably when socialising and that she had become isolated and spent a lot of time at home. He reviewed the most recent MRI (13 April 2015), examined her again and thought there had been no significant change in her condition since he had last seen her three years before. Once again, there were no objective neurological signs and “certainly no features of radiculopathy”. He stated:
“The most recent MRI scan of the lumbar spine showed no evidence of neural compression or canal stenosis. These findings indicate a degree of mismatch between the physical symptomatology and chronic pain and the radiological features.”
71 Professor Davis recommended conservative management and did not think pain management had anything to offer. By reference to one of the Guides, he felt she had 5 per cent impairment of the lumbar spine and of the cervical spine.
72 Professor Davis was also asked to comment upon the film of the surveillance, noting that she had “very free neck movements in the video surveillance”. He noted the obvious limp and the holding of the low back towards the end of one of the segments, but made no comment at all about the bending.
73 On behalf of the TAC, the plaintiff was recently examined by the consultant psychiatrist, Dr Timothy Entwisle.[61] Dr Entwisle diagnosed Recurrent Major Depressive Illness, in remission with psychiatric treatment, and a Chronic Pain Syndrome. He did not think the accident had aggravated her pre-existing psychiatric illness, noting that she still sees the same treating psychiatrist and is on the same doses of medications as she was before the accident.
[61]DCB 14
74 On 31 March 2016, the plaintiff was examined on behalf of the defendant by Dr Gerard Powell, consultant orthopaedic surgeon.[62] On examination, he found “a significant element of functional overlay” and set out in some detail her responses to various examinations, including that it was not possible to test the active range of motion of the plaintiff’s arms because she stated she was unable to move them. Dr Powell reviewed some, but not all, of the available radiological material and performed what he described as a forensic examination of the medical records. He concluded that she had chronic back pain, which contributed to her ceasing work months before the accident, and that the medical records support a diagnosis of soft-tissue injury to the cervical spine and aggravation of mechanical low-back pain as a result of the accident. He thought that the plaintiff had subsequently developed a significant chronic pain disorder, not responsive to treatment, and that there was a high degree of functional overlay evident on examination. His diagnosis of the accident-caused injuries was of “a chronic pain disorder principally affecting her back and also the neck”.[63] He thought the degenerative changes seen on the repeated radiological studies were age appropriate and that no acute injuries had been demonstrated by the radiology.
[62]DCB 22
[63]DCB 35
The surveillance
75 As to her daily activities, the plaintiff said she drives every day to see her mother; she rarely looks after a grandchild, and sometimes she picks up the grandchildren. She had seen the video that was later shown and explained that on that day, she picked up her eldest grandson, Nicholas, because he was sick; that she was aware of the prospect that surveillance would be conducted, and that it was hard to pick things up from the ground, though she did so if necessary because “she was not paralysed”. She agreed that she could sit on the ground, but said she “must all the time change position”, and that her neck was stiff, but when driving, you must look.
76 Video surveillance taken on 12 and 26 February of this year was shown. On 12 February, it was put to the plaintiff, and the plaintiff agreed, that she spent that day out of the house, having left at about 11.00am in the morning. She spent the day with her daughters, had a haircut and, after 5.00pm, went home to her daughter’s premises. She agreed that on 26 February, she had gone to the primary school to collect her grandson because he was sick and because his mother was in the city with the older grandchild. She agreed that she had arrived at her daughter’s house at about 3.00pm, and that after 5.00pm, she came outside the house and squatted on the ground whilst her grandson played in the driveway.
77 I have reviewed the video surveillance[64] in my chambers where my view of what is to be seen is much better than it is in court. It shows the plaintiff, on 12 February 2016, driving in the manner described in the reports I have already reviewed and, at the very end of the film, limping whilst holding her hand on her back on the right side above the hip. On 26 February 2016, the plaintiff can be seen, though only faintly, in the doorway of her daughter’s house while she watches her grandson playing in the driveway on a wheeled device, probably a skateboard. For some of the time she is speaking on a mobile telephone. This excerpt begins at 15:17. At 15:27, she emerges from the house and takes up a position just outside the front door, where she sits on the ground with her back against a glass panel, her knees pulled up almost to her chin, and again, she is seen talking on the mobile telephone. At about 15:28, she lights a cigarette and then rises from the ground with no apparent difficulty. Next, she bends very fully (to deal with perhaps her shoes or thongs at ground level), straightens easily and then bends again, even more fully, to gather her belongings – a handbag and water bottle – after which she straightens easily, lifts the handbag onto her shoulder and walks quite freely to the car. As is often observed, this was but a snapshot of the plaintiff’s activities, and in this case, there have been a number of occasions when the demonstrated range of back movement to medical examiners has been only mildly restricted. Nevertheless, given the level of disability and unremitting severe pain of which she complains in the medical histories and affidavit material, the movements seen are, in my view, surprisingly normal and apparently comfortable.
[64]Exhibit 3
78 In re-examination, the plaintiff explained that the position she adopted in the film was sitting with her bottom on the ground, and that this was a position she adopted because her hips were sore.
Analysis
79 In my view, the credibility and reliability of the plaintiff’s account, set out in medical histories and in her own affidavits, were greatly damaged in cross-examination. Reference to earlier, pre-accident, recorded histories, investigations, and other pre-accident documentation, leads me to conclude that the plaintiff has substantially understated the level of her pre-accident disability, in evidence and in the medical histories. I think it probable that she set out, from early days, to separate the reporting of the effects of the accident from what was known to those who had managed her spinal and psychological problems up until that time. No satisfactory explanation is given for selecting Dr Kucminska as the doctor to treat her for the accident-caused symptoms, when she had already attended her usual general practice that morning. In this context, it is worth noting that she had attended Dr Ranasinghe’s practice on about forty-four occasions from October 2006 (when Dr Kucminska’s notes commenced) for a wide variety of medical and psychological complaints (as earlier noted, twenty or so for spinal complaints), and, in the same period, Dr Kucminska’s practice (putting to one side occasions when she took her mother there) for treatment on only eleven occasions, and few of these for spinal complaints. As far as I can tell, she had not attended Dr Kucminska for treatment of any description for more than a year. I note also that she had been seen on many occasions before October 2006, going back to 1999, at Dr Ranasinghe’s Silverton practice.
80 I do not accept her account, related to Dr Kucminska and elsewhere, that her mental state had improved to the point where she stopped taking Lexapro before the accident. As for her back, in addition to other matters already referred to, the psychologist, Dr Corran, in August 2009, recorded this history:
“She was working as a cleaner until father died. Injured back when working in Red Tulip factory. She worked with pain using medication.”[65]
[65]Exhibit 4, page 12 Silverton notes
81 In my view, these histories, combined with Dr Ranasinghe’s opinion as expressed in his medical report to the Department of Social Security that the plaintiff’s back pain was chronic and interfered with her capacity for work, and was likely to do so for more than two years; and also combined with the long history of radiological investigations and prescription of strong analgesia for low-back pain, lead to the conclusion that the plaintiff had very significant problems with her low back for a number of years before the accident. These problems had, at the very least, contributed to her cessation of work, which had involved activities which she had years before been advised to avoid, and had incapacitated her for work involving bending and lifting and caused continuing symptoms.
82 I am also satisfied that the plaintiff suffered from a Major Depressive Illness,[66] managed by significant doses of Lexapro and Avanza; from Post-Traumatic Stress Disorder as result of her incarceration; and anxiety and, perhaps, panic attacks. As there is some mention of the neck and hand and knee symptoms as a consequence of the accident, it is also worth noting in this context that knee complaints and hand symptoms, which were suspected to have their origins in her neck, are also recorded before this accident took place.
[66]So severe that she had attempted to hang herself after her father’s death: PCB 16, paragraph 22
83 As to whether any additional impairment or loss of body function attributable to the accident satisfies the “very considerable” test, the plaintiff has not discharged the onus of proving that this is so. The difficulty in this regard begins with the uncertainty, arising in a significant degree from the plaintiff’s own lack of candour on this subject, as to the level of her pre-accident physically-based symptoms. The difficulty for the plaintiff continues because of variations in her account of the severity of vehicular damage, her attendances at Dr Ranasinghe’s rooms on 2 and 3 December 2009 without mention of accident-caused physical symptoms,[67] and her report in January 2010 to that practice that she was improving. It is also of note that she was not seen by anyone from whom reports are available, or whose notes are in evidence, for accident-caused problems between January and May 2010, when she presented with left and then right-sided leg symptoms. In this regard, it is of note that left-sided symptoms had been recorded on a number of occasions before the accident, and that the history in relation to the right side was that they had been present for a week.
[67]though the psychologist’s note on 2 December records “had car accident last week and began to think that she was not in control of the other areas of her life”: page 10 Silverton notes.
84 Moreover, the neurosurgeon who saw her first after these new symptoms presented was very clear in his view that any radiological changes observed on CT scan or MRI predated the accident,[68] and at that stage, he thought her presentation was largely functional in nature. Although with the passage of time, and further scans, what is to be seen on the radiology seems to have become more significant, there does not seem to be any reason (other than the plaintiff’s account) to attribute these changes to the accident rather than the progression of the established disease seen on the imaging before it. Furthermore, though this was not pressed in submissions, if the physical results of the accident are thought to be a Chronic Pain Syndrome of the organically-based sort, that conclusion is hard to reconcile with the (albeit) very brief and singular snapshot of the video showing remarkably full and normal movements.
[68]At least in his letter to Dr Kucminska. This was also Mr Barrett’s view.
85 For those reasons, I find that the plaintiff has not discharged the onus she bears of establishing what the state of her back was before the accident. I am left quite uncertain as to what that was. She has not discharged the onus of establishing what was the accident-caused state of her back after the accident. I am not satisfied that, after a gap of some months in early 2010, her presentations with complaints of sciatica in May of 2010 are more likely to be the result of the accident than of the problems that preceded it. Even if they were, I would not be satisfied that the accident-caused “aggravation” or “worsening” is itself serious in the required sense. When one compares her pre-accident state, of having ceased a part-time cleaning job because of back pain described as chronic by the long-term treating general practitioner, and her presentation and examination findings and treatment in the years after the accident, the difference is not great and certainly, in my view, well short of “very considerable”.
86 It follows that the plaintiff’s application, based upon paragraph (a) of the definition of “serious injury”, fails.
87 I turn now to the application based upon paragraph (c).
88 The plaintiff’s case under paragraph (c) of the definition relied upon Chronic Pain Syndrome (“CPS”) of the psychologically-driven variety (as opposed to the physically-based pathway sensitisation variety sometimes called “CRPS type 1”). Counsel submitted that this condition was already evident when the plaintiff was seen by Mr Drnda in August 2010, and, after that time, was the preponderant diagnosis of the specialists in physical medicine. It was submitted that the reference to it in Dr Mahalingam’s report was to CPS of the psychological variety. Further, counsel submitted that this disorder was the diagnosis of Mr Brighton-Knight, Dr Kornan, Dr Shirazi, Mr Powell and Dr Entwisle, and that CPS was, in its consequences for the plaintiff, severe in the sense required.
89 I am not persuaded of this. First, because the diagnosis is in large part, if not completely, founded upon acceptance of the plaintiff’s account of her pain (as to its extent and distribution), and upon her account that her experience of pain has been increased by the accident. As I have already said, I have grave reservations about the reliability of the plaintiff’s reporting as to both these matters, and I am not satisfied, on the balance of probabilities, that since the accident, she has experienced increased pain (however derived) to the extent, and in the distribution, she has described in her affidavits and histories.
90 Second, I do not accept that the medical opinions upon which the submission is based should be understood in the way for which counsel contended. In my view, Mr Drnda’s comments, relied upon the by the plaintiff in this context, are much more likely to be an expression of his own reservations about the veracity of the plaintiff’s account and reported symptoms, than the making of the diagnosis for which the plaintiff contends. Mr Brighton Knight, in his letter to Mr Barrett, is describing physically-based symptoms and, although he refers to a long-standing CPS, he makes no attempt to analyse the role the accident plays in its origins. Dr Shirazi also describes the pain she suffers in his correspondence in mainly physically-based terms.[69]
[69]nociceptive and neuropathic
91 Dr Paul Kornan, as already noted, had seen the plaintiff on three occasions. On the first two, his diagnosis from the psychiatric point of view was that she presented with a Major Depressive Disorder, an Adjustment Disorder with Anxiety and Specific Anxiety Phobia (namely, fear of a further accident). Writing in March 2013, he thought her psychiatric condition was stable. Dr Kornan’s most recent report of 29 February this year included this history:
“… on this occasion, she indicated that now, she felt as though her depressive features were more of an issue, due to her associated pain issues. When I saw her previously, it appeared as though her pain symptoms seem to dominate the clinical picture, and she was certainly extremely preoccupied with her pains symptoms, and their after effects. She now felt, however, that her depression had become far more of a significant problem than previously, long (scil along) with her pain symptoms, and she was experiencing significant difficulties in attempting to cope with this now”.[70]
[70]PCB 143
92 Further on in the history, Dr Kornan records that she told him that her depression “had now significantly worsened” and that her psychotropic medication had increased. In his summary, Dr Kornan wrote that he felt that her current presentation was now more in line with “a Pain Disorder aspect”, as well as a “Specific Phobia” aspect and he listed these under his heading “Diagnosis”. In answer to further specific questions, Dr Kornan wrote that it was his view that a depressive illness did not incapacitate her, but rather a pain disorder did.
93 I must say that I find it difficult to understand the reasoning involved in the most recent of Dr Kornan’s reports. Her self-report to him was that her depression had worsened, and that her medication had been increased to deal with this, yet, on the basis of no new history that I can discern from reading his report, Dr Kornan introduces a new diagnosis. In answer to specific questions, Dr Kornan confirmed that “from the psychiatric viewpoint alone, Mrs Olejar’s ongoing disability is only partially related to the accident and its after effects”, and again, he thought her psychiatric condition stable.
94 In further remarks, Dr Kornan wrote that he thought the effects of the accident were now Pain Disorder, phobias and fears relating to transport accident. However, Dr Kornan’s opinion does not, in my view, make it clear that the accident-related psychiatric disorder which he has diagnosed is, taken alone, sufficiently grave to be regarded as “severe”, even if one was to accept his analysis, which I do not.
95 There is other evidence which bears upon the question of whether a CPS, psychologically driven, is the diagnosis here. For about the last four years the plaintiff has been treated by Dr Sridevi Kolli, registered psychologist. According to his report, he has seen the plaintiff regularly since January 2012. In his report, he states when he first saw her, it was “in the context of worsening symptoms of depression and panic attacks”. He states that he has seen her every four to six weeks since then and wrote that –
“… the onset and development of emotional symptoms including depressed mood appeared to be in response to an identifiable stressor and is experienced in the context of sudden demise of her father and the motor vehicle accident soon after.”[71]
[71]PCB 83
96 His treatment over the time he has been seeing her has been directed at managing her anxiety, depression and stress, and it was his opinion that her symptoms had gone into “partial remission”.[72] It is of note that he makes no mention of the psychologically-driven CPS.
[72]PCB 84
97 As already noted, the plaintiff returned to Dr Ranasinghe’s care in the year 2011, though she continued also to see Dr Kucminska. In his most recent report,[73] Dr Ranasinghe set out her various attendances over the years that followed, and reported on her presentation to him on 13 January this year, when he recorded her complaints in some detail, and also his examination findings,[74] which stand in marked contrast to the surveillance footage taken not long afterwards. He discussed the other symptoms, not relied on in this case, from which she suffers, and their connection with her back pain, stating his opinion that the more recent car accident was “only partly responsible for her chronic pain”. A plain reading of his report suggests that it is his view that her widespread pain symptoms are physically based and he certainly does not diagnose a psychologically-driven CPS.
[73]PCB 93
[74]Set out earlier in these reasons
98 Mr Powell found what he called “a high degree of functional overlay” on clinical examination, and seemed to be prepared to accept the plaintiff’s account that there had been an aggravation of mechanical low-back pain resulting from the accident and, accepting her account of the difference in her pain and level of functioning, appears to accept that she does suffer from a chronic pain disorder, in the absence of any evidence of acute physical injury.
99 Although listed in his diagnoses, Dr Entwisle’s analysis of the plaintiff’s psychiatric problems under the heading of “Opinion” notes her history of chronic pain pre-dating the accident and sets out his conclusion that her psychiatric illness has not been aggravated by the accident. He appears to accept her account that her incapacity to work relates to a worsening of her pre-existing back pain.
100 Dr Mahalingham’s reporting was relied upon in submissions as supporting the case based upon a CPS. I am not persuaded that his reports should be read in this way. Dr Mahalingham, in his first report, describes the psychiatric treatment she has had and is likely to need, but declines to offer an opinion as to the prognosis for her pain – stating that it should be addressed by “her GP and pain management specialist”. That he regards her pain as a physical problem seems confirmed in his letter of April 2014, in which, in answer to a question as to diagnosis, he described her pain as “Chronic back pain”, and not as CPS. Any doubt that his view is that her back pain is physically-based seems to be removed by this passage from his report of December 2015:
“Whether the accident caused her current exacerbation of pain cannot be answered by me. This question has to be addressed by a spinal surgeon who has expertise and access to her pre and post-accident MRI of her spine.”
101 In my view, the plaintiff’s case under paragraph (c) is not supported by the treating psychiatrist, who has had the great advantage of treating her before and after the accident. It is not supported by the treating psychologist, who has seen her very regularly over the past four years, and, for the reasons set out, I do not accept Dr Kornan’s analysis.
102 Further, as I do not accept the plaintiff as a reliable witness or historian, and as I think it more likely – as Mr Drnda did early on – that her presentation is of functional overlay, and as she is not disabled by the alleged psychologically-driven CPS all the time (as the video demonstrates), I am not satisfied, on the balance of probabilities, that a CPS, psychologically-driven, is the cause of her claimed symptoms of pain.
103 Even if I was mistaken in that analysis, it is, in my view, clear that the plaintiff had chronic back pain before the accident. If, contrary to my findings, she now experiences back pain as a result of a psychologically-driven CPS, I am not satisfied that the additional pain, psychologically derived, is such as to be regarded as “severe” in the sense required. In any event, I am not persuaded that the psychological condition is severe (even if pre-accident psychiatric illness was not playing a part) in the required sense.
104 For these reasons, I have concluded that the plaintiff has not discharged the onus she bears of satisfying me as to the degree of her pre-accident mental and physical impairment, nor has she persuaded me of the degree of her accident-caused worsening, for the purposes of the Petkovski comparison, under either of paragraphs (a) or paragraph (c), much less that any additional impairment caused by the accident is serious, or severe, as the case requires.
105 The application for leave is refused.
106 I will hear from the parties as to the form of orders and costs.
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